Nature of Land Flashcards
What is a Proprietary Right?
A Proprietary right in land can be enforced by an action in rem (i.e possession of the land can be recovered). It is also capable of being enforced against a third party
What is a Personal Right?
A personal right in land can only be enforced by a personal action for damages. Personal rights will only bind the original parties
How does a right get proprietary status?
It has to satisfy certain substantive (definitional) characteristics.
What are the two types of legal estate?
Freehold and leasehold
What is Leasehold land?
Land that is granted under a lease
Where are interests in land defined under LPA 1925?
S.1- Deals with Easements, charges and rights of entry
What is a legal interest?
Mortgages, easements, Rights of entry
What are equitable interests?
Freehold Covenants, Estate contracts, interests in a trust, easements granted for an uncertain term
What is an express trust over land?
A is the trustee, and the legal owner of the land.
B is the beneficiary and has an equitable interest in the land
What is an implied trust?
A and B buy a house together, each contributing 50% of the purchase price.
The Land is transferred to A only. A is the legal owner of the land.
Equity recognises B’s contribution and implies a trust. A and B are both beneficiaries. B has an equitable interest in the Land
what is the distinction between legal and equitable interests?
1) Remedies, people who hold legal interests have a wider range (including damages) remedies.
2) enforcement
What are the requirements under LP(MP)A 1989s2 when transferring land?
1) Contract must be in writing
2) it must contain all the expressly agreed terms
3) it must be signed by both parties
How is land transferred under LP(MP)A 1989 s1?
Must be via deed, which is validly executed. It must be delivered
When is Land transferred?
The Legal title does not transfer until registration ahs taken place (LRA 2002, s 27(1))
What happens with registration of unregistered land?
Legal title is transferred upon completion of the deed. The owner must then register the land within 2 months of completion, otherwise the title will revert back to seller
(LRA 2002,ss 4 and 6)
What are the formalities with the contract where the subject matter is land?
1) contract must be in writing
2) must contain all the expressly agreed terms
3) it must be signed by both parties
can a land contract be varied?
McCausland v Duncan Lawrie Ltd- parties tried to orally agree a variation to the completion date.
Held- Variation was held to be void- such variation must also comply with LP(MP)A 1989
what is the Proprietary effect of the Contract
Walsh v Lonsdale- The effect of a binding land contract is to pass an equitable interest in the land to the buyer, called an estate contract. This case makes it clear that a contract to create or transfer a legal property right will create a proprietary right in equity if the remedy of specific performance is available
What are some examples of estate contracts which will create a contractual right to a legal estate?
Option Agreement- gives the party a right during the option period to serve notice that they wish to buy the land.
A right of pre-emption- Gives a party the right of first refusal
What is the effect of a land contract that fails?
The courts will recognise an equitable interest in the land providing:
1) there is a document that complies with LP(MP)A 1989, s2
2) the remedy of specific performance is available
What are the Remedies for breach of a land contract?
1) Damages- common law remedy- available as of right rather than at the courts discretion
2) specific performance- equitable remedies- a court order compelling the defaulting party to carry out positive contractual obligations
3) injunction- court order restraining somebody from doing something
Key case was Coatsworth v Johnson- the court did not recognise an equitable lease because the tenant had breached a term of the contract, so the remedy of specific performance was not available
From what date is it that Unregistered Land must be registered from if there is a triggering event?
1st December 1990
What is the date unregistered land must be registered following changes of ownership following death or gifts of land?
1 April 1998
What are the triggering events?
1) Transfer of the freehold estate by sale, gift, or court order.
2) Grant of a lease for a term of more than 7 years
3) Assignment (transfer) of a lease of unregistered land with more than 7 years to run
4) an Assent, vesting assent or vesting deed which is the disposition of the freehold or a leasehold with more than 7 years to run (mainly refers to transfers on death
5) The Grant of a lease to take effect in possession more than 3 months after the date of the grant (i.e future leases)
A first legal mortgage of the freehold or of a leasehold with more than 7 years to run
What is the legislation governing first registrations?
LRA 2002, s4
(s3 is for voluntary registration)
What is the mirror principal under registered land?
The register should reflect all matters that the property has the benefit of and is subject to.
Although a downside to this is that recording third party interests against an estate has never been fully realised due to the existence of overriding interests (an interest that does not appear on the register but will still be binding on the owner of the legal estate and any buyer of it- defined under LRA)
What is the Curtain principal under registered land?
The register records ownership of the legal estate in property- including who the beneficial or equitable ownership is.
What is the Insurance Principle under registered land?
The accuracy of the register is guaranteed by the state- LRA 2002, s23- any error will be corrected and anyone suffering loss will be compensated
What is ‘absolute’ under class of title?
This is the best form of ownership- this land is only bound by interests that are registered on the title or overriding interests
What is ‘qualified’ under class of title?
The Land Registry is of the opinion that the title has some defect- which is then specified on the register
What is ‘Good Leasehold’ under class of title?
This will be granted where the land registry is satisfied as to the title of the leaseholder only and not the freeholder
What is ‘Possessory’ under class of title?
This may be given by the Land Registry where the applicant is in possession of the property or is in receipt of rents and profits and there is no other class of title that can be given. Where there are no deeds to prove ownership (or they have been destroyed) possessory title is given. Usually this is given to those under an ‘adverse possession’ or ‘squatters rights’.
This may mean that third party interests created before the date of first registration will bind the property even those these are not noted on the title
What is the law regarding keeping the Land Registry register updated?
LRA 2002, s27 provides a list of transactions that must be registered at land registry.
Failure to register means the transaction is not legally recognised (LRA 2002, s27(1).
What is a remedy for a proprietary right of way?
To take back the use of the land
What is a remedy for a personal right?
Damages
Can Proprietary rights burden future parties?
Yes
Can personal rights burden future parties?
no
How do you determine whether the right is Proprietary or Personal?
1) IS it on the fixed list of recognised proprietary rights in land? (it is a closed list)
2) Does it satisfy any substantive characteristics for the proprietary right?
3) Has it been created/acquired in accordance with the formalities for the right (if any)?
4) If a right is proprietary, you then need to ask if it is enforceable against a third party (i.e a new owner of the burdened land).
1) Is it on the fixed list of recognised proprietary rights in land? What are some examples?
1) Mortgages
2) Easement
3) Right of entry
4) Restrictive Covenant
5) Interest in a trust of land
6) Estate Contract
What is an interest in a trust of land and how do they work?
There is a split in the legal and equitable ownership- The legal ownership is held by the trustees, for the benefit of the beneficiaries
What are the three conditions of a deed?
Intended as a deed, validly executed by the seller and delivered
When does title pass on unregistered land?
At completion- then the land must be registered. If not registered within two months, legal title passes back to the seller
When does title pass on registered land?
When it is registered
How do you determine whether something is a fixture or a chattel?
By applying the Degree of Annexation and Purpose of Annexation tests.
What is the Degree of Annexation test?
How well is an item attached, and how much damage would be caused if an item was removed? This raises a presumption that can be rebuked by the Purpose of Annexation test
What is the Purpose of Annexation test?
This asks why an item is attached to the land- is it for enjoyment as a chattel or is it to enhance the land. If not attached, but forms part of the Architectural design it can be a fixture.
